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Waters of the U.S.

The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers finalized a rule in June 2015 that significantly expanded the definition of “waters of the United States,” also known as “navigable waters,” under the Clean Water Act.

EPA failed to listen to concerned landowners and business owners in crafting the new rule, which vastly expanding EPA’s and the Corps’ regulatory authority beyond the limits approved by Congress and affirmed by the U.S. Supreme Court. The rule was challenged in court by dozens of states, municipal, industry and environmental organizations. It was quickly blocked by the federal courts based on its legal flaws and the harm it threatened to cause, and was never implemented.

The Waters of the U.S. (WOTUS) rule from the Obama Administration is a prime example of a regulation that badly over-reached. After an outcry from forest landowners, farmers, home builders, Congress and the voters who elected a new president, the EPA has finally begun the process to withdraw this rule.

Recent Action

On February 28, 2017, the President Trump issued an Executive Order directing EPA and Department of the Army to review and rescind or revise the 2015 Rule. EPA, Department of Army, and the Army Corps of Engineers are in the process of reviewing the 2015 rule and considering a revised definition of "waters of the United States" consistent with the Executive Order.

EPA and the Army have extended the comment period by 30 days for the proposed first step of the review of the definition of "waters of the United States" to provide additional time for stakeholders to weigh in.

FLA submitted comments on behalf of private forest owners and indicated that provisions from the 2015 Rule are in various respects, beyond the Agencies' statutory authority, inconsistent with Supreme Court precedent, and contrary to the goals of the Clean Water Act. The comments are part of the EPA’s ongoing review of the WOTUS rule as directed by President Donald Trump.

Background

Consistent with President Trump’s February 28, 2017 Executive Order, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) announced a joint proposal representing the first step of a two-part plan to implement a narrower “waters of the U.S.” or “WOTUS” definition. The first step, published in the Federal Register on July 27, 2017, seeks to repeal the 2015 WOTUS rule, and replace prior rules.

The second step of the plan will be to proceed with a new rule positing a narrower WOTUS scope. Although the EPA and the USACE have not yet identified a precise timetable for this second step, it is expected to be substantively based on former Justice Scalia’s dissenting opinion in which he wrote that “waters of the U.S.” covers only wetlands and small waterways with a surface connection to navigable waters.

The proposed repeal does not dispute the 2015 WOTUS rule’s scientific reasoning for protecting water bodies under the Clean Water Act. Instead, the proposal appears to focus on policy, avoiding a scientific debate on whether it is appropriate to alter the scope of the Clean Water Act.

When finalized, the proposed rule would replace the 2015 Clean Water Rule with the regulations that were in effect immediately preceding the 2015 rule.

FLA has significant concerns with the 2015 rule. It expands federal jurisdiction far beyond what was authorized by Congress, resulting in the imposition of burdensome requirements and tremendous uncertainty for forest landowners.

FLA supports the EPA and Corps of Engineers’ proposal to withdraw the 2015 rule.